Tension Between Privacy Law and Other Interests Highlighted in Recent German Episode

Chris Wolf, Hogan Lovells Privacy and Information Management Practice Director, has a column in Slate, the daily Web magazine addressing the tension between privacy laws and other societal interests, and the potential for inflexible application of privacy laws in the EU. His discussion is in the context of the prosecution of two reporters for invading the privacy of a former Nazi commando who had been in hiding for decades. The reporters obtained a videotaped confession from the former Nazi and yet faced more prison time than the mass killer was likely to serve. Ultimately, they were acquitted.

The criminal invasion-of-privacy case against the reporters put into sharp focus the automatic and inflexible application of privacy law in circumstances where flexibility and discretion appear to be called for. Press freedom groups around Europe protested the prosecutor's zeal against the reporters. They argued that secret-taping laws exist in many places in Europe (as they do in various U.S. jurisdictions), but that if ever there were a case for prosecutorial discretion and refraining from putting reporters on trial, this was it. The confession the reporters extracted was very much in the public interest and helped bring to justice a Nazi war criminal. Moreover, the reporters were threatened with more time in jail for their privacy transgressions than Boere [the former Nazi] may serve for murdering innocent people, given his age.

Chris tied the recent prosecution to the pending EU Regulation on data protection, which he noted "contains a 'right to be forgotten' that [the former Nazi] Heinrich Boere might have appreciated." And he concluded his column with this observation:

As the proposed EU regulation that includes the “right to be forgotten” is considered, policymakers in Europe will be grappling with the balance between privacy and free expression, privacy and innovation, privacy and law enforcement access to data, and many other areas where the right of the individual and the rights of others can clash. In a digital world that doesn’t easily stop at country borders, decisions EU policymakers take to balance these competing rights will be have global implications and will affect the laws governing the values of civil society for generations.

Unlike the decision to prosecute the Dutch reporters for privacy violations in the Boere case, the proposals for a new EU privacy regulation are open to public discussion and input. The issues that will be discussed will not be as compelling as those involved with reporters unmasking a Nazi war criminal’s deeds, but the Boere incident serves as a reminder that privacy rights must be weighed against other rights, and that inflexible rules can lead to unintended and unjust results.